Opinion
No. CR-97-1443.
October 23, 1998.
Appeal from Madison Circuit Court, No. CC-97-906, James P. Smith, J.
John G. Butler, Jr. Huntsville, for appellant.
Bill Pryor, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
The appellant, Patrick O'Neal David, was convicted of two counts of second-degree criminal possession of a forged instrument, a violation of § 13A-9-6, Ala. Code 1975. Pursuant to the Alabama Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975, the trial court sentenced him to concurrent terms of 20 years and one day. This appeal followed.
The appellant argues that the trial court erred in denying his motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because the prosecution used six of its peremptory challenges to remove blacks from the venire. Before the jury was sworn, the following occurred:
"[DEFENSE COUNSEL]: We make a motion pursuant to Batson. It appears that one, two, three, four, five, six, of the prosecution's strikes were based on race and therefore we would make a motion to declare a mistrial in this case, Your Honor.
"THE COURT: Your remedy is not a mistrial. I mean, your remedy is to challenge the individual jurors. I will get back to that in a minute. Just a minute. Okay, based upon the number of strikes, six out of eight made by the State in this case, the Court rules that the defendant has made a prima facie challenge under Batson and the burden now shifts to the State to establish a race — come forward with a race neutral reason for each of the strikes.
"Start with — the first one, I believe is Juror Number — I am going down the list, Juror Number 3.
"[PROSECUTOR]: Yes, sir, Juror 3 indicated in voir dire he had a daughter that had been arrested for illegal possession of a credit card. He also has a conviction himself for issuing worthless checks.
"THE COURT: Alright, the Court rules that the State has established a race neutral reason for striking that juror. [Defense counsel], do you want to — you have an opportunity to show that it is pretextual, if you want any further presentation with regard to that juror.
"[DEFENSE COUNSEL]: Judge, Juror 2 had friends and relatives arrested — several friends and relatives that had been arrested and he did not strike them.
"[PROSECUTOR]: If I can respond to that, I struck everyone on the jury panel that had prior criminal convictions on their record regardless of race. Every one of my nine strikes had a prior criminal conviction.
"THE COURT: The Court overrules the Batson challenge as to Juror 3. Let's see, the next one would be Juror Number 12.
"[PROSECUTOR]: Juror 12 has a rather extensive arrest record including several issuing worthless check cases.
"THE COURT: Alright, the Court finds that that is a race neutral reason for striking that juror. [Defense counsel], do you have anything to add on that juror?
"[DEFENSE COUNSEL]: Judge, not on that. I mean, you know, I don't have any knowledge of any prior records. I obviously — we don't get that information. I think Juror Number 26 was also struck.
"THE COURT: I am taking them one at a time. That was his, do you have anything further to say with regard to Juror 12?
"[DEFENSE COUNSEL]: That is all.
"THE COURT: The Batson challenge is overruled with regard to 12. The next one is 14.
"[PROSECUTOR]: Your Honor, Juror 14 has a prior conviction for driving under the influence of alcohol.
"THE COURT: Alright, the Court finds that is a race neutral reason for striking that juror.
"[Defense Counsel], anything further on that juror?
"[DEFENSE COUNSEL]: Judge, I feel that that is not a felony, number one, and number two, it is — this is not a DUI case, this is a possession of a forged instrument.
"THE COURT: The Batson challenge is overruled as to Juror 14. The next one is Juror 15.
"[PROSECUTOR]: [Juror 15] has a prior conviction for driving under the influence of alcohol and also indicated in voir dire she had a brother who was serving time in prison and had escaped from prison.
"THE COURT: And made headlines, I think she said.
"[PROSECUTOR]: That is correct, in the newspaper.
"THE COURT: The Court finds that is a race neutral reason for striking Juror 15. [Defense counsel], anything to add with regard to Juror 15?
"[DEFENSE COUNSEL]: Same thing as 14, Your Honor.
"THE COURT: The Batson challenge is overruled. The next one is Juror 26.
"[PROSECUTOR]: Your Honor, Juror 26 has a prior conviction for issuing worthless checks.
"THE COURT: Alright, the Court finds that is a race neutral reason for striking that juror. [Defense counsel], do you have anything further on that one?
"[DEFENSE COUNSEL]: Judge, the only thing that — on all of these we would ask that to be able to look at all the prospective jurors' records because we have no way of saying that any of these other people he did not strike might not have a record. We have no way of knowing that.
"THE COURT: Alright, the motion is denied. The challenge to Number 26 is overruled. Alright, Number 29?
"[PROSECUTOR]: Juror 29 has an extensive arrest record, Your Honor.
"THE COURT: The Court finds that is a race neutral reason for striking that juror. Mr. Butler, anything further on Juror 29?
"[DEFENSE COUNSEL]: No.
"THE COURT: The Court overrules the Batson challenge as to Juror 29. Alright, I believe that covers it. We will go back in the courtroom."
(R. 31-35).
"In Batson, the United States Supreme Court held that the prosecution violates equal protection when it peremptorily strikes `potential jurors [from the venire] solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.' 476 U.S. at 89, 106 S.Ct. at 1719. After the appellant makes a timely Batson motion and establishes a prima facie showing of discrimination, the burden shifts to the state to provide a race-neutral reason for each strike of a minority veniremember. See, e.g., Ex parte Bird, 594 So.2d 676 (Ala. 1991). We will reverse the circuit court's ruling on the Batson motion only if it is `clearly erroneous.' Jackson v. State, 549 So.2d 616 (Ala.Cr.App. 1989)."
Cooper v. State, 611 So.2d 460, 463 (Ala.Cr.App. 1992).
In support of its Batson motion, the defense argued that the prosecution used six of its eight peremptory challenges to strike black veniremembers.
"Alabama courts have recently held that even a showing that [a] party had struck a high percentage of strikes used against a minority was not alone enough. In Ex parte Trawick, 698 So.2d 162, 168 (Ala. 1997), the Alabama Supreme Court held, `Without more, we do not find that the number of strikes this prosecutor used to remove women from the venire is sufficient to establish a prima facie case of gender discrimination.'"
Armstrong v. State, 710 So.2d 531, 533 (Ala.Cr.App. 1997).
"According to the record, the appellant in this case relied solely upon the fact that seven of the eight veniremembers struck by the prosecutor were black. According to the Alabama Supreme Court in Ex parte Trawick as well as the United States Supreme Court's interpretation of the burden in equal protection cases, these bare statistics were not sufficient to make a prima facie showing of discrimination."
Armstrong, 710 So.2d at 534-35. Because the appellant relied solely upon the number of black veniremembers struck, we question whether the appellant made a prima facie showing that the prosecution exercised its peremptory challenges in a discriminatory manner. However,
"[w]here, as in this case, the trial court requires the opposing counsel to state reasons for the peremptory strikes without first requiring that a prima facie case of discrimination be established, this Court will review those reasons and the trial court's ultimate decision on the Batson motion without determining whether the moving party met its burden of proving a prima facie case."
Harris v. State, 705 So.2d 542, 545 (Ala.Cr.App. 1997).
The appellant argues that the prosecution should have given him information about the convictions of all prospective jurors. At trial, he argued that he needed the records because the prosecution might not have struck all the veniremembers who had criminal convictions. We have consistently held that "`[t]he appellant does not have an absolute right to the disclosure of the arrest and conviction records of prospective jurors.'" Cooper, 611 So.2d at 465, quoting Kelley v. State, 602 So.2d 473, 477 (Ala.Cr.App. 1992). Additionally, "the state has no duty to disclose information that is available to the appellant from another source." Kelley v. State, 602 So.2d 473, 478 (Ala.Cr.App. 1992). During voir dire examination, the appellant could have asked the veniremembers about their criminal convictions. Therefore, the appellant did not have a right to the arrest and conviction records of the prospective jurors, and the prosecution was not required to give them to him.
The prosecution offered racially neutral reasons for its challenges. "We have held that strikes based on previous criminal charges, prosecutions, or convictions of the veniremember or a family member of the veniremember are not racially discriminatory as such." Thomas v. State, 611 So.2d 416, 418 (Ala.Cr.App.), cert. denied, 611 So.2d 420 (Ala. 1992) (citations omitted). However, the prosecution did not question the veniremembers about prior criminal convictions during voir dire examination, and the record does not contain any mention of the veniremembers' prior convictions. The trial court cannot accept "at face value the State's ostensibly facially neutral explanations for the use of its peremptory challenges." Ex parte Thomas, 601 So.2d 56, 58 (Ala. 1992). In Thomas, the Alabama Supreme Court held that the trial court improperly denied the defendant's Batson motion because the trial court accepted at face value the prosecutor's facially race-neutral reason for striking the veniremembers. In so doing, the supreme court explained that, if the prosecutor had questioned the veniremembers about their prior criminal convictions, or if the trial court had ordered the prosecutor to produce the records that documented the veniremembers' criminal convictions or had examined the document that the prosecutor relied upon in making his peremptory challenges, it might have been in a position to affirm. Ex parte Thomas, 601 So.2d at 58-59. See also Bush v. State, 615 So.2d 137 (Ala.Cr.App. 1992); King v. State, 612 So.2d 1333 (Ala.Cr.App. 1992); Williams v. State, 620 So.2d 82 (Ala.Cr.App. 1992).
In this case, the prosecution did not question the veniremembers during voir dire about their prior criminal convictions or histories; the trial court did not order the prosecution to produce any evidence of the basis for its peremptory challenges; and the trial court did not examine the evidence relied upon by the prosecution. Because it accepted at face value the prosecution's facially neutral explanations for its peremptory challenges, the trial court did not ensure that the prosecution exercised its peremptory challenges in a race-neutral manner. Accordingly, we remand this case with instructions that the trial court hold a hearing to determine whether the prosecution exercised its peremptory challenges in a racially neutral manner. Because the prosecutor has already given facially neutral explanations for its strikes, the trial court must simply determine whether the evidence relied upon by the prosecutor substantiated the prosecutor's explanations. We do not hold that the appellant has the right to examine the evidence relied on by the prosecution. Instead, the trial court shall examine that evidence and shall make specific, written findings of fact as to whether the evidence substantiates the prosecutor's explanations. The trial court shall take all necessary action to ensure that the circuit clerk makes due return to this court at the earliest possible time and within 42 days of the release of this opinion. The return to remand shall include written findings of fact, conclusions of law, and a transcript of the proceedings, if applicable. We reserve ruling on the other issues raised on appeal until a proper return to remand is made to this court.
REMANDED WITH INSTRUCTIONS.
McMILLAN and BROWN, JJ., concur;
LONG, P.J., concurs in the result;
COBB, J., dissents.
I am concerned that certain language in the majority opinion could be construed to require that, in every case, the proponent of a peremptory strike must substantiate its reasons for a particular strike with concrete evidence on the record. While it is doubtless better for the proponent of a strike to come forward with evidence to support the reasons it has proffered for a strike, neither Batson nor its Alabama progeny mandates that the proponent establish evidentiary support for a strike. The majority notes that the prosecutor did not inquire of the veniremembers during voir dire examination as to whether they had any prior criminal histories. However, ordinarily, parties should not be expected to risk embarrassing or alienating prospective jurors by pressing them during general voir dire with questions concerning criminal records. See Newman v. State, 667 So.2d 132, 135 (Ala.Cr.App. 1992) (Bowen, P.J., dissenting), Judge Bowen's dissenting opinion adopted by the Alabama Supreme Court in Newman v. State, 667 So.2d 137 (Ala. 1993); see also Wilsher v. State, 611 So.2d 1175, 1183 (Ala.Cr.App. 1992). Further, although the trial court should not accept a reason that has been proffered for a peremptory strike at "face value," it is not a per se abuse of discretion for the trial court to assume that the proponent of the strike, usually an officer of the court, has been truthful and accurate when giving its reasons for a strike. The trial court is not required to request evidentiary support for every strike in every case, particularly in those instances where the challenging party has not specifically questioned the validity of the proffered reason or demanded further proof or explanation.
In the present case, the prosecutor stated that he struck every veniremember who had a criminal record, and it does not appear that the appellant's counsel, in response, seriously questioned whether or not the black veniremembers who were struck by the prosecutor had criminal histories. However, because the appellant's counsel informed the trial court that he did not have the criminal records of any of the veniremembers and pressed for a specific inquiry into whether the prosecutor engaged in disparate treatment of white and black veniremembers who had similar criminal records, the trial court should have taken reasonable steps to determine whether white veniremembers who were left on the jury had records of criminal convictions or charges similar to those of the struck black veniremembers. Cf. Reese v. City of Dothan, 642 So.2d 511, 514 (Ala.Cr.App. 1993) (although the prosecutor did not present documentation substantiating his explanation that he struck black veniremembers because of their arrest records, it was not error to deny the defendant's Batson motion where the defendant did not argue in the trial court that the prosecutor engaged in disparate treatment by failing to strike white veniremembers who had arrest records). At the time the prosecutor gave his reasons for striking the black veniremembers, the appellant was, as a practical matter, precluded from questioning the veniremembers directly as to the veniremembers' criminal histories. The appellant's counsel learned after the fact that the struck jurors allegedly had criminal records. Under the circumstances, the interest in affording the appellant a genuine opportunity to carry his burden of showing that the prosecutor's stated reasons were pretextual warranted some further inquiry by the trial court to substantiate the prosecutor's explanations. Therefore, I believe that a remand in this case is proper.
Although I agree with a large part of the analysis Judge Long offers in his special concurrence, I disagree with the majority's conclusion that the case should be remanded.
I am not willing to rely on Ex parte Thomas, 601 So.2d 59 (Ala. 1992), as a precedent for the principle that the trial court cannot rely on the representations of a prosecutor, as an officer of the court, when a defendant complains that he does not know what the prosecutor knows. I believe a defendant must do something more than merely claim, "I don't have access to that information," before a court requires a prosecutor to come forward with reports, files, or notes to prove the prosecutor is telling the truth. Even though the court in Thomas specifically stated that "[W]e [do not] intend this case to stand for the proposition that the State is now required to produce all notes, reports, or other documents that it uses in exercising its peremptory challenges," today's decision to remand this case to the trial court opens that door just a little bit wider. I believe that, because of the imprecise language in Thomas, we must narrow, rather than broaden, its application. I must, therefore, respectfully dissent.